Bigley v. Williams

Mr. Justice Gordon delivered the opinion of the court, This was an action on the case, brought by the plaintiff against the defendants, for damages resulting from the sinking of one of Shis barges, laden with coal, by a collision with their steamer, R. J. Grace, whilst navigating the Ohio river. It was alleged that this loss happened through the negligence of the defendants’ •employees who had charge of their boat. This was the issue; it was one of fact, and any evidence which tended to establish negli [115] gence, on part of those navigating the steamer, or their incompetency in the discharge of the duties which devolved upon them, and which would tend, though remotely, to produce the catastrophe complained of, was relevant and pertinent to the issue trying. The plaintiff’s barges were floating down the river, propelled by the current, and directed only by oars. The steamboat was ascending, driven by steam, and fully under the control of its pilot; hence, it was bound, by every law of navigation, to keep clear of the barges. Obviously, then, a collision happening, under such circumstances, the boat would be prima, facie in fault. It follows, that the plaintiff might have rested upon showing the collision and loss, with the additional evidence, made necessary by the fact that the accident happened at night, that the precaution required by the Act of Congress, as well as by common prudence, to wit, the exhibition of such light or lights as were necessary to warn the steamer of the position of the barges, had been complied with. If, however, the plaintiff chose to go a step further and show that the boat was improperly manned, he might without error do so. It was at best but anticipating the defence by introducing, out of order, his rebutting evidence. It was certainly competent for the defendants to attempt to show, as they did, that the pilot was careful and skilful, for, thereby, the probabilities of negligence would be greatly reduced, but in such case it would not be controverted that the plaintiff might rebut by proving the incompetency of that officer. Independently of this, the plaintiff was not bound to rest his case upon the presumption of carelessness arising from circumstances, but might prove positive negligence, and we certainly think that proof of want of skill, in so important an officer as the pilot, wa.s at least one step in that direction. We, therefore, refuse to sustain the first and second assignments of error. The sixth, seventh and eighth relate to one point, to wit, the contributory negligence of the plaintiff in not carrying upon his barges, during the night, one or more fixed lights. This question was properly submitted to the jury. The learned judge who tried the case says: “ His (the plaintiff’s) skirts must be clear of all negligence on his part. It was his duty to put up such lights, and in such manner and time— not merely to make it possible for the steamer to avoid a collision— but, to give the officers ample time to determine their course, and act deliberately in all they did. It was not sufficient to bring out his lights when he saw and apprehended danger — only some three minutes before the collision. They should have been out before that; before any danger was seen or apprehended.” We cannot see how the defendants could require a direction more favorable. The duty of the plaintiff was to show a light when it would avail the pilot and créw of the steamboat to avoid a collision with the barges, and that that duty was neglected during the remainder of [116] the night, when the steamer was not in sight, was of no importance whatever to the defendants. The fourth assignment must be sustained. The fact of the suicide of the pilot, within twenty-four hours, or at any other time, aftei’ the accident, was so clearly not evidence that argument upon this point is not necessary. The only usé that could be made of such testimony would be to damage the defendants’ case by raising a presumption of negligence in the pilot, from his own appalling and atrocious act, for which the defendants were not in the slightest degree responsible. This matter should not have appeared in the case. So, the declarations of Marshall, unless made before or at the time of the collision and “so connected with it as to make then part of the res gestee," ought not to have been admitted. As was said by Mr. Justice Agnew in Fawcett v. Bigley, 9 P. F. Smith 411: “The narrative of an agent of a past occurrence cannot be received as proof, against the principal, of the existence of such occurrence.” The offer, in the case cited, was to prove the declarations of the defendant’s agent within one hour after the accident, but it was rejected, and, as we have seen, that rejection was sustained by this court. We find, therefore, that the nearness of the subsequent declarations of an agent to the accident, does not qualify them as evidence unless such declarations are so immediately connected with it as necessarily to form part of its history. The ninth assignment is not sustained. The court well answer the point in saying, that the breaking of the bell-rope would not be evidence of negligence unless it, in some degree, contributed to the accident. The reversal of the judgment makes an examination of the tenth specification unnecessary. Judgment is reversed, and a venire facias de novo awarded.